As the voice of the flexible packaging industry, the Flexible Packaging Association (FPA) works with regulators at the U.S. Environmental Protection Agency (EPA), U.S. Occupational Safety and Health Administration (OSHA), and other U.S. regulatory agencies such as the Federal Trade Commission (FTC) and Food and Drug Administration (FDA) to share industry positions and mitigate potential regulatory burdens on flexible packaging manufacturing.
FPA’s Environmental, Health, and Safety (EHS) Committee also tracks regulatory developments across these agencies to inform FPA’s members on upcoming and existing environmental compliance issues and policies. The Environmental Index is posted on the FPA website for information on agency updates quarterly (flexpack.org/regulations/environmental-regulations). The committee meets in person three times a year, has bimonthly calls, and urges companies to participate. Highlights of the EHS Committee’s recent activities include:
- PFAS: In addition to all of the state and local activity on per- and polyfluoroalkyl substances (PFAS) and plastics, EPA has now issued regulations for Toxic Release Inventory (TRI) reporting, safe drinking water standards, solid and hazardous management handling, and toxics bans, with a potential consequence for industry players—even in some cases if PFAS and perfluorooctanesulfonic acid (PFOA) were not intentionally added to a manufactured product. For instance, 196 individual PFAS must be reported annually to EPA by industries like ours in each company’s annual TRI. EPA also recently listed at least nine classes of PFAS and PFOA as “hazardous constituents,” bringing them into play for managing a plant’s solid and hazardous wastes as well as a potential for long-term liability if found at a Superfund cleanup. The agency also is working on surface water regulations to address PFAS and PFOA and banning the intentional addition of PFAS in consumer products through the Toxic Substances Control Act of 2016.
- OSHA Process Safety Management (PSM), Lock-Out/Tag-Out Rules/Excessive Heat Rules, and Walk-Around Rules During OSHA Inspections: Over the past two years, OSHA has sought input from the regulated community on each of these topics but failed to issue final regulations—except for the “walk-around rules” that apply during an OSHA inspection. The EHS Committee submitted for the record comments on OSHA’s expansive proposal to invite third parties from the public, other than interpreters, to accompany plant personnel on enforcement inspections. While OSHA rejected many of FPA’s suggestions, the final rule accepted several of the important constraints the committee advocated for, including at least nominal constraints on union members and competitors accompanying employees who lodge complaints with OSHA over unsafe work practices. The committee is also paying close attention to mandatory rest rules and other restrictions on heat exposure, although it was forced to decline an invitation by the U.S. Small Business Administration (SBA) to participate in SBA’s Small Business Regulatory Enforcement Fairness Act panel on OSHA’s proposed rule. Members also anticipate a significant amount of work to review and comment on OSHA’s update to its PSM rule—now at least several years in the making.
- EPA Reporting of Climate and Hazardous Air Pollutants: EHS Committee members and outside counsel participated in several EPA sessions on EPA’s development of comprehensive greenhouse gas (GHG) and hazardous air pollutants reporting and submitted on behalf of FPA extensive technical comments on a proposed regulation. The final rule is at the U.S. Office of Management and Budget (OMB) for review before being finalized. It was proposed to be effective in the reporting year 2027 and was deemed by OMB to have a “significant impact” on the economy because of its broad applicability on roughly 130,000 plants to report emissions and process characteristics on hundreds of chemical constituents. Even though FPA members keep extensive records of the constituents utilized in the coatings and inks in their processes—and most would be completely destroyed in oxidizers used for pollution controls in the industry—the regulation, when issued, will be costly for manufacturers. Recordkeeping through the governmental reporting websites every three years will come with a steep learning curve. When the final rule went to OMB for approval, it was deemed to have a significant impact on the national economy, which reflects the administration’s concerns with its implementation and costs. The EHS Committee’s comments pointed out that the applicability of the rule was vague and confusing and that much of the process and engineering information EPA was proposing to require to estimate human health effects to “underserved communities” was unnecessary and invasive.
- Refrigerants: EPA’s refrigerant rules are driven by the very high GHG intensity of hydrofluorocarbons (HFCs) and their use in industrial processes, air conditioners at members’ plants, supermarket display cases, and college dorms. They can no longer be manufactured except for certain medical (i.e., asthma) use and military/space usage, and their uses will be banned by 2027–2030 for all but these exceptions. Most, if not all, of the substitutes for HFCs are highly flammable. EPA is micromanaging which substitutes can be employed in which uses. The EHS Committee took refrigerants on as an issue a decade ago because propane and butane were denominated as substitutes for refrigerants in water chillers and members were concerned that fork trucks would hit them and set fires on the plant floor. The EHS Committee hopes to offer more insight into the issue as these regulations unfold and technicians are trained.
- The Chevron Doctrine Being Rejected by the U.S. Supreme Court and How It May Affect EPA and OSHA Regulations: In 1984, the Supreme Court created the Chevron doctrine, fittingly in adjudicating a Clean Air Act regulatory challenge. The Chevron doctrine directs courts to defer to expert agencies on the interpretation of ambiguous statutes, and it has been cited in thousands of legal decisions since 1984. On May 26, 2024—almost 40 years to the date—the current Supreme Court overruled Chevron USA Inc. v. Natural Resources Defense Council Inc. and denounced the Chevron doctrine as an unconstitutional infringement by the executive branch on the congressional branch. The Supreme Court—advised during oral argument of the immediate repercussions of reversing the Chevron doctrine—declared that this extension of the Supreme Court’s “Major Questions Doctrine” expressed first in the OSHA and U.S. Health and Human Services COVID-19 vaccination cases and another Clean Air Act case would not apply retroactively. Legal commentators argue that the decision only means that reviewing courts should not automatically defer to agency interpretations but instead must independently assess their reasonableness within their statutory framework.